McQuitty v. Wilhite

• Decision Date: 31 March 1909
• Citation: 117 S.W. 730,218 Mo. 586
• Parties: McQUITTY v. WILHITE et al.
• Court: Missouri Supreme Court

117 S.W. 730

218 Mo. 586

McQUITTY v. WILHITE et al.

Supreme Court of Missouri, Division No. 1.

March 31, 1909.

1. APPEAL AND ERROR (§ 193)—QUESTIONS NOT RAISED ON TRIAL — SUFFICIENCY OF COMPLAINT.

The objection that the petition does not state a cause of action may be first raised on appeal.

2. EXECUTORS AND ADMINISTRATORS (§ 135)— CONTRACT OF DECEDENT TO CONVEY—CONVEYANCE BY ADMINISTRATOR.

The authority given an administrator by Rev. St. 1899, §§ 129, 130, 146 (Ann. St. 1906, pp. 379, 380, 384), on an order of the probate court to rent the land of decedent, make repairs on fences and buildings, and to sell land to pay debts, does not include authority to convey land in performance of a contract made by decedent, and hence an administrator cannot be required to do so by decree in equity.

3. EXECUTORS AND ADMINISTRATORS (§ 135)— ORAL CONTRACT OF DECEDENT TO CONVEY LAND—SPECIFIC PERFORMANCE.

Rev. St. 1899, § 173 (Ann. St. 1906, p. 394), providing that the vendee, having a written contract with decedent for the conveyance of land, may present a petition to the probate court asking that the administrator be required to specifically perform by making a deed, does not authorize such performance of an oral contract made by decedent.

4. EXECUTORS AND ADMINISTRATORS (§ 135)— CONTRACT OF DECEDENT TO CONVEY—SPECIFIC PERFORMANCE—SUFFICIENCY OF PETITION.

Even if an administrator could be required to convey decedent's land, a petition to enforce conveyance is insufficient where it fails to allege that there are debts of the estate for the payment of which a sale of the land is required, and that the probate court has ordered the sale.

5. SPECIFIC PERFORMANCE (§ 106)—CONTRACT BY DECEDENT—PARTIES DEFENDANT.

An action to enforce a contract, made by a person since deceased, to convey land, cannot be maintained without making the heirs of decedent parties defendant.

Appeal from Circuit Court, Boone County; Alex. H. Waller, Judge.

Action by Harriet McQuitty against R. L. Wilhite and I. V. Evans, administrators of the estate of W. R. Wilhite, deceased. From a judgment for plaintiff, defendants appeal. Reversed.

Stephens & Collier, for appellants. W. M. Williams and E. W. Hinton, for respondent.

GRAVES, J.

By the first count of the petition the plaintiff avers that at the request of the deceased, W. R. Wilhite, she went to his home, and that, after remaining there for six months: "The said W. R. Wilhite proposed, promised, and agreed that if plaintiff would remain with the deceased, W. R. Wilhite, and render to said W. R. Wilhite household services in the way of keeping house, doing washing, ironing, and perform any and all such other services incident thereto so long as the said deceased, W. R. Wilhite, should live, that he, the said deceased, would at or prior to his death make ample provision for plaintiff the rest of her days, and the further promise that she should be compensated and remembered far in excess of what she could make by working for wages. That plaintiff, then and there relying upon said promise and agreement, accepted the same and in good faith entered upon the discharge of her duties, and so continued to remain with and serve said deceased W. R. Wilhite, from said date, 1865, up to the time of his death; October ____, 1905, being a period of 40 years. That at all times plaintiff remained dutiful and faithful toward the deceased, W. R. Wilhite, in the capacity of housekeeper, and attended to all the duties incident thereto according to the directions of the said W. R. Wilhite, and at odd times worked upon the farm and made a hand for the said deceased. That for said services, so rendered as aforesaid, plaintiff has received no compensation, and that so far as plaintiff knows the said deceased, W. R. Wilhite, has utterly failed to make such provision as promised and agreed upon; but that plaintiff has in every particular carried out and complied with the agreement stated as aforesaid up to and after the death of the said W. R. Wilhite." Then follows the averment that reasonable compensation would be $4,800, and judgment is asked in that amount. By the second count it is averred that, in addition to the promise mentioned in the first count, the said W. R. Wilhite "promised and agreed to give and devise to plaintiff the following described tract of land, to wit: [Description omitted.] In consideration that plaintiff remain with and perform all services incident to housekeeping and such other services in the way of attending to things outside, such as raising chickens, turkeys, etc., up to his death, that plaintiff, relying upon said promise in good faith entered upon and continued in the service of the said deceased, W. R. Wilhite, up to his death, and at all times rendered the services required of the plaintiff, and in accordance with the wishes of the said deceased." And by the prayer to said second count, the court is asked to specifically enforce this contract. Defendants are the administrators of W. R. Wilhite, deceased. Answer to the first count was general denial, plea of the five-year statute of limitations, as to all services rendered more than five years prior to death of W. R. Wilhite, and a plea of payment. Answer to second count was a general denial. Reply, general denial. Trial before the court, and judgment went for the defendants as to the first count, and for the plaintiff on the second count. Plaintiff abided the judgment of the trial court, but defendants, after unsuccessful motion for new trial, appealed to this court.

At the outset the defendants confront us with the proposition that no valid cause of action is stated against them in the second count of the petition, and therefore the judgment below must be reversed. The petition was not challenged below by demurrer, nor was there by answer any suggestion of a want of necessary parties. Defendants stand here on the broad proposition that no cause of action was stated at all as against them, and that such can be raised for the first time in this court. It has long been held that, if a petition states no cause of action, such question can be raised here for the first time, and a judgment thereon should be reversed. Davis et al. v. Jacksonville Southeastern Line, 126 Mo. 69, 28 S. W. 965; Hoffman v. McCracken, 168 Mo., loc. cit. 343, 67 S. W. 878. We think defendants' contention is well founded. Administrators, the personal representatives of the deceased, have no interest in the lands. They take no title to the lands. Under an order of the probate court (Rev. St. 1899, § 130 [Ann. St. 1906, p. 379]), they can under certain conditions rent the lands, and by section 131, Rev. St. 1899 (Ann. St. 1906, p. 380), by order of court repairs to fences and buildings may be made by the ordinary administrator. By section 146, Rev. St. 1899 (Ann. St. 1906, p. 384), such administrator may on order of the probate court sell lands to pay debts. These sections cover all the rights an administrator has in the real estate, and none of them rise to the dignity of title in real estate. They are all mere rights contingent upon the order of the probate court.

In Hale v. Darter, 5 Humph. (Tenn.) loc. cit. 80, it is said: "The heirs, in such a case as the present, are the legal owners of the very estate sought to be conveyed. It does not belong to the personal representative either legally or benficially, in trust or otherwise. He has nothing to do with the real estate." In 18 Cyc. pp. 297-299, the law is thus stated: "Neither an executor or an administrator has, as such, any inherent interest in, title to, or control over the realty of his decedent. The testator may, however, by his will, give to his executor such authority and control over real estate as he sees proper; and in some jurisdictions the statutes give to the executor or administrator a certain control over the land of the decedent, usually either for the purpose of preserving the same from waste during the course of administration, effecting a division and distribution among those entitled, or of subjecting the same to the payment of the decedent's debts in case the personal assets prove insufficient for this purpose. The authority of an executor in this respect is,...